Is plagiarism illegal? - PlagiarismChecker.net

Introduction

Any attempt to define "plagiarism' uncovers that there are, in fact, many different definitions currently in usage, spanning a wide range of activities. Many of these definitions contradict each other. Moreover, there is also evidence that a generation brought up using the Internet has very different views on what constitutes "plagiarism'.

Plagiarism is usually seen as being "wrong', "immoral' or at least undesirable. However, as we shall see, some of these activities may be committed unintentionally and may in fact be a necessary step in the learning process. Furthermore, "plagiarism' should not be confused with "copyright', as what may be plagiarism is not necessarily copyright infringement. Thus while plagiarism is often "unlawful' it may not always be "illegal'. For instance, several activities which constitute "plagiarism', such as the improper referencing of sources in student essays, may come under the defence of "fair use' or "fair dealing'. Finally, this paper considers the criminal and civil penalties for plagiarism, and the academic and professional penalties that can be imposed, as well as possible grounds for challenging findings of guilt.

SECTION ONE – TYPES OF PLAGIARISM

Definitions

The Merriam-Webster Online Dictionary defines "plagiarism' as "to steal and pass off (the ideas or words of another) as one's own: to use (another's production) without crediting the source: to commit literary theft : to present as new and original an idea or product derived from an existing source'1. This implies an element of dishonesty, as it involves the stealing or deception of work or ideas. However The Oxford English Dictionary is more general. There, "plagriarize' is defined as "take and use (another's writing's etc.) as one's own2". This does not necessarily involve any intent to deceive.

The word "plagiarist' is derived from the Latin word "plagiarus', meaning, "kidnapper'3. Yet as we shall see, plagiarism does not need to involve dishonesty and can even be committed by mistake. As Evans points out: "Everyone seems to know [plagiarism] is wrong... but few know how to completely define it'4.

Oxford University states that plagiarism is "the copying or paraphrasing of other people's work or ideas into your own work without full acknowledgement.' This includes published and unpublished work5. It also includes "collusion', i.e. the unauthorised working with others. The university states that students may be guilty of plagiarism even if they "genuinely ignorant of referencing conventions'6. This suggests that "plagiarism' is an all-embracing term that covers a huge variety of activities.

Types of plagiarism

The Harvard Guide to Using Sources7 provides useful examples of unacceptable conduct. Many of these involve the practice of "cutting and pasting' from electronic sources such as the Internet8. The Guide divides plagiarisms into several different types.

The first is "Verbatim plagiarism'. This is word for word copying from another source without placing the copied text in quotation marks and providing a clear citation, i.e. an acknowledgement of where the material came from.

Another category is "Mosaic plagiarism'9. This involves copying parts of another's material but changing a few words here and there without placing the material in quotes or providing a citation. The Guide states that this can be the result of careless note-taking, making notes which are too close to the original source, causing confusion over which words are yours and which words belong to someone else.

An example can be found in How Opal Mehta Got Kissed, Got Wild, and Got a Life, an unpublished novel Kaavya Viswanathan, which was found to contain numerous instances of plagiarism, notably from two previously published books by author Megan McCafferty10.

For example, compare McCafferty's Sloppy Firsts:

"Bridget is my age and lives across the street. For the first twelve years of my life, these qualifications were all I needed in a best friend. But that was before Bridget's braces came off and her boyfriend Burke got on11'

Page 14 of Viswanathan's novel reads:

"Priscilla was my age and lived two blocks away. For the first fifteen years of my life, those were the only qualifications I needed in a best friend. We had first bonded over our mutual fascination with the abacus in a playgroup for gifted kids. But that was before freshman year, when Priscilla's glasses came off, and the first in a long string of boyfriends got on.'12

Here, mosaic plagiarism can be seen in the way certain words are changed while others are left unaltered. The result is very close to the original in its expression.

"Inadequate paraphrasing' is a similar type of plagiarism where the student paraphrases but uses words which are too close to the original13. The Harvard Guide states that even if you provide a citation, this is not enough to prevent plagiarism. The new passage must instead restate the original work using completely new words. The Guide suggests that students should make accurate notes of the original text in order to avoid falling into this trap14.

According to The Harvard Guide, correctly paraphrased work, or the use of material placed in quotation marks, should always be followed by a citation immediately afterwards15.

Other types of plagiarism can include providing inaccurate information about the sources in citations and using too many sources without enough interconnecting original material, with the result that the paper contains almost no original work16.

Another type of plagiarism is "self-plagiarism'. This is a practice mainly found among academics where the author recycles their own work, "dressing up' old research to make it appear original and new17, and is generally a deliberate act.

Problems with definitions

However, though examples of plagiarism are numerous, there is much disagreement about when the rules should apply.

Many institutions tend not to require that you provide citations for facts or ideas which are "common-sense'. For instance, from my own experience the Legal Practice Course is a professional course undertaken by students who have already passed an undergraduate law degree or its equivalent. Students are therefore presumed to possess basic knowledge about the law, so when they answer problems questions, for instance about easements in land law, student are not expected to explain fully what an "easement' is by referring to case law, but to deal with the practical problems at hand.

However, as Carroll notes, the problem with this is that "common knowledge' varies from discipline to discipline and by academic level18. For instance, a PhD student would be expected to know about topics which a first year undergraduate may be ignorant of. Similarly, arts students tend to cite things differently than science students19. This undermines any solid definitions of plagiarism.

Another problem when defining plagiarism is that educational institutions' plagiarism policies tend to give students more leeway in examinations. For instance, Yale College's plagiarism guide states that for its purposes the term "plagiarism' will be usually confined to coursework only20.

In the United States of America, The Council of Writing Program Administrators (an advisory body for institutions providing writing programs) takes the view that institutions should treat intentional and unintentional plagiarism differently21. They state that if a student tries in good faith to acknowledge their sources but fails to do so properly, such as by misusing quotations marks, this should not be classed as "plagiarism'22. In fact, they regard it as part of the natural learning process for students. They also state that using "common knowledge' is acceptable. However this again does not address what "common knowledge' may be.

By contrast, the United Kingdom's Quality Assurance Agency (QAA) for Higher Education is more stringent. In their Code of Practice for Higher Education Institutions, they even recognize that some programs of study are stricter than others23. The Agency includes fraud, collusion, cheating, impersonation, and the use of "inadmissible material' in their definition of "academic misconduct'. This includes material which is downloaded from the Internet without proper acknowledgment24. This definition appears self-contradictory, as it recognizes that some institutions and even academic programmes define "plagiarism' differently. What use then is the definition? Such definitions are unhelpful and serve only to confuse the issue.

"Patchwriting' is another pitfall students may fall into. This technique does not involve deliberate fraud or "cheating'. It occurs where students borrow passages from other sources, making minor changes but paraphrasing too closely. Howard says that students unconsciously do this if they are unfamiliar with words and ideas25. She argues it is part of the learning process, where students assimilate phrases, terminology and ideas to gain understanding of a particular subject. However she states that this is still plagiarism, regardless of whether the student acknowledges their sources26.

If that wasn't enough for the student to contend with, there is evidence to suggest that the present generation of students views "plagiarism' differently from previous generations. In American colleges 68% of all students admit cutting and pasting from the Internet without giving acknowledgments27. Blum suggests that this forms part of a cultural pattern. McCabe and Trevino also note that this "may be due to a changing definition among students of what constitutes plagiarism', particularly when it comes it paraphrasing28.

Blum says: "Contemporary students are swimming in a sea of texts'29. They constantly quote from TV, movies, emails, blogs and websites. Theirs is a culture of "intertextuality' where lifting quotes is so ingrained in their psyche that it comes naturally without thinking. Contrasted to this, the academic world has strict rules on referencing even when direct quotations are not used. This may explain the rise in the amount of plagiarism seen in colleges and universities recently.

Conclusion

We have seen that is difficult, if not impossible, to precisely define "plagiarism'. It can encompass a wide variety of activities, not all of which involve professional "cheating'. Unintentional plagiarism can also be committed. However there is disagreement between educational institutions ad advisory bodies on what should be classed as "plagiarism'. A problem for students is that some disciplines and forms of assessment are more stringent than others. Also, plagiarism is in some ways part of the learning process, and even a cultural norm in the digital age. Therefore it may be very difficult for the student to spot when they are plagiarizing another's work.

SECTION TWO – Plagiarism v Copyright

UK law

Copyright is a property right that gives the owner the exclusive right to exploit a work30. The Copyright Designs and Patents Act 1988 (CDPA 1988) governs UK copyright law. One of the main differences between copyright and plagiarism is that copyright generally does not protect ideas, only the expression of those ideas. However this distinction is not as clear cut as it sounds.

What is copyright?

Plagiarism covers a variety of material. It includes academic papers, professional publications, works of fiction and even scientific formulae. In short, where there is any potential for the use of original reference material.

However copyright law only protects certain kinds of works. The CDPA 1988 defines these as original literary, dramatic, musical31 and artistic works32, films33, broadcasts, sound recordings34 and typographical arrangements35. Therefore a pop star's likeness cannot be protected by copyright law as it does not fall into one of these categories36.

Copyright material must also be sufficiently substantial. Single words, titles37 or company names38 will not be protected. Formats for television shows have also been held to be too uncertain to qualify for protection as a literary work without a script39. However headlines on an Internet website have been held to constitute a literary work40.

There is no minimum requirement as to quality before a work can gain copyright protection. Bainbridge argues that even a few notes may attract copyright as a "musical work'41. Copyright works must also be recorded in some permanent form, such as in writing42.

Another major difference between plagiarism and copyright is that copyright only lasts for a fixed period. For original works this is seventy years from the death of the author43, while for sound recordings and broadcasts this is fifty years44. Typographical arrangements last for twenty-five years45. If a work's copyright expires it becomes "public domain' and can be used freely without a licence. By contrast, plagiarism is not concerned with whether a source is public domain or not, but whether it has been adequately referenced.

Infringement

Plagiarism policies and copyright law both cover a wide variety of activities. However copyright law is more rigid, in that it sets out what activities may constitute copyright infringement.

s.16 CDPA states that copyright is infringed by copying a copyright work, issuing copies, renting or lending the work to the public, performing, showing or playing the work in public, communicating the work to the public, adapting the work or authorizing any of these acts to be done without a licence There is no need to show any intention on the part of the infringer. Therefore, as with plagiarism, infringement may be unintentional.

Infringement is legal if you obtain permission from the copyright owner to exploit the work. A license may only be granted by the original author46, or joint authors if there are more than one47, of by the author's employer if the work was created during the course of their employment48. This is unlike plagiarism, where it does not matter whether the original author consents. Indeed, "collusion' with someone else to produce a piece of work may be plagiarism in itself49.

How much can be copied?

Plagiarism policies allow for some copying provided that any text lifted from the original is surrounded in quotation marks and referenced properly50. Similarly, you can legally copy material from a copyright work provided you do not take a "substantial part'51. This has been the subject of much debate. In Ladbroke v William Hill52, the UK House of Lords stated that this was a "qualitative not a quantitative' test, and that it was a matter of fact and degree. Therefore even copying a small piece of text could be infringement if that part was important in relation to the whole work.

Originality

To be a copyright work, UK law requires that literary, artistic, musical and dramatic works be "original'53. However this simply means that the work must originate from its creator and not be copied from somewhere else54. One of the consequences of this is that facts cannot generally be protected. This contrasts with plagiarism, which suggests that it is the failure to say where the facts came from that incurs a penalty55.

Sufficient acknowledgment

Plagiarism is concerned with originality of work. For instance, plagiarists who recycle old ideas are criticized for undermining the pursuit of original knowledge and enriching themselves, sometimes at the expense of their more honest colleagues56. However even if they are not paid, they may still be criticized for failing to produce something that is new.

By contrast, even if you give a valid acknowledgement, you may still infringe copyright if you damage the economic value of the copyright57. For instance, in Baigent v Random House Group Ltd (the Da Vinci Code case)58, the court held that acknowledgement was irrelevant for copyright infringement purposes except for limited statutory defences. These are the "fair dealing' defences in UK law which will be considered later.

Publication: does it matter?

Plagiarism does not require anything to be made public. However, except for "copying', copyright infringement must involve the work being made available to the public59. Bainbridge notes that the approach courts have taken is whether the copyright owner's interests have been harmed; for example, was a public performance something the author could have expected to have been paid for? If so, this will be infringement60. For simple copying, however, copyright law also does not require anything to be made public, so students may still infringe copyright even though their paper is only marked internally.

Ideas v Expression

Another major difference between plagiarism and copyright infringement is that copyright generally protects only the expression of the work, not the ideas behind it. Plagiarism however, can be committed by stealing ideas as well as by copying text.

However, some UK cases suggest that ideas can be copyrighted. For instance in Ravenscroft v Herbert61, the author of a non-fiction book sued fiction novelist James Herbert, claiming that his novel "The Spear' contained ideas and conclusions copied from the earlier work. The claim was successful.

In Harman Pictures, NV v Osbourne62, a film company which owned the copyright to a non-fiction book about the Charge of the Light Brigade sued successfully for copyright infringement when a script was produced based on the same historical incident.

However in the Da Vinci Code case, the Court of Appeal refused to allow a claim by the authors of The Holy Blood and the Holy Grail that Dan Brown, the author of the novel The Da Vinci Code, had reproduced a substantial part of their non-fiction book. The claimants alleged that Brown had copied the skill and effort involved in their original research that traced the bloodline of Jesus Christ and Mary Magdalene to the present day. The authors came up with a "central theme' involving 15 elements which they alleged Brown had copied. The claim failed as the court felt that the "Central Theme' was merely a fabrication for the purposes of the case and a substantial part of the non-fiction book itself had not been copied.

Saunders states that this means that an academic can copy ideas from someone else's work, as long as he presents them in an original way. Such behaviour may be plagiarism, but it is not copyright infringement63.

However in Designers Guild v Russell Williams64, the House of Lords suggested that ideas could be protected by copyright.

In that case, Lord Hoffman said copyright could be infringed by reproducing the original elements in the plot of a play or novel without reproducing a single sentence of the original. He said these were essentially ideas, which could be protected provided they were original and not "commonplace'. If so, they would form a "substantial' part of the work. So if something of artistic originality is copied, whether it is words or ideas, this is "substantial' copying and will be infringement65. As this was a House of Lords case, it would seem to take precedence over the Da Vinci Code case.

In Newspaper Licensing Agency Ltd v Marks & Spencer plc66 Lord Hoffman stated that the Designers Guild case meant that any idea which involved "artistic skill and labour' would be original and copyrighted.

However Deazley states that Lord Hoffman was in fact wrong. In the Designers Guild case, the House of Lords actually ruled on the appellate functions of the Court of Appeal, therefore any comments about copyright were obiter dicta, and not binding on lower courts67. Also, the Lords themselves were in disagreement over the copyright issue, so no clear majority view comes out of that case.

However the Court of Appeal in the Da Vinci Code case did recognize that non-literal copying can be infringement. Mummery LJ said copying may include not just the language, but "the original selection, arrangement and compilation of the raw research material.' However this does not mean that facts and ideas are copyright.

Critics note that the Da Vinci Code judgment reflects continuing confusion about whether ideas can be copyrighted68. The result of this is that what amounts to an idea or an expression remains vague in English law. As Lord Hailsham said in LB (Plastics) v Swish Products69: it all depends on what you mean by "ideas'.

Moral Rights

Moral rights are additional rights contained in the CDPA 1988. These cannot be licensed or assigned70. However they can be waived by the author71.

Under s.77 CDPA 1988, the author of an original copyright work or a film has a right to be identified as such. However the right is not automatic and must be asserted before the work is made public, for example, by placing a notice in the front of a book. If the author asserts this right, it will bind everyone who comes into possession of the work subsequently, so the right is not defeated by an intermediate possessor removing the identification72. The right also applies to a "substantial' part of the work73. This is probably the same as for copyright infringement74. Therefore if you reproduce a section of an original work without crediting the author, you may also violate this right as well as commit plagiarism.

Under s.80(1) CDPA 1988, an author or director also has a right to object to derogatory treatment of an original copyright work or film. "Derogatory treatment' is defined as any treatment that amounts to distortion or mutilation of the work, or is otherwise prejudicial to the honour or reputation of the author75. This could include pasting short snippets together to give a different meaning or impression from the original text.

Bainbridge calls moral rights "half-hearted', as they can be waived and can fail for lack of assertion76. However they are worth considering, as failing to attribute work to the author or disrespectful handling of source material may breach these rights.

Conclusion

Therefore copyright infringement in the UK differs from plagiarism in that only certain works are protected for a limited duration. Infringement also requires that the amount used from the copyright work is "substantial', and may not extend to ideas, only to their expression, however there is some overlap. Finally, giving sufficient acknowledgment will not stop unauthorized use being copyright infringement.

SECTION THREE - COPYRIGHT LAW IN THE UNITED STATES OF AMERICA

Copyright law in the United States has been codified in US Code Title 17 (17 USC). Only Congress can pass copyright law77. However the legislation has been interpreted by the federal courts, whose decisions remain important elements of US copyright law78.

§.102 states that only "original' works can be copyrighted. The US Copyright Office states that this requires a minimum amount of authorship79. As a result, you cannot copyright titles, company names, slogans, short phrases or works consisting of common property, such as charts of measurement, or facts80.

As with UK law, the work must be "fixed in any tangible medium of expression' to be copyrightable81.

Infringement

§.106 17 USC gives the copyright owner the exclusive right to do or authorize the following: reproduce the work; prepare derivative works; and distribute copies to the public by sale, rental, lease, or lending. This also includes displaying works publicly, and using individual images of a motion picture or other audiovisual work, i.e. to use a still photo. Therefore to do any of these things without a licence is to violate US copyright law.

Public Domain

A defence to copyright infringement is that the work is in the "public domain', for instance, if copyright in the work has expired. The US has rather complicated laws concerning the duration and expiration of copyright, due to the various statutes which have been replaced over time. Each new statutory regime does not have retrospective effect, meaning that there are various regimes still in place for older works.

For instance, works published or registered with the US Copyright Office on or after 1st January 1978 have a copyright term of 70 years from the last surviving author's death, 95 years for anonymous or corporate authors, or 120 years, whichever is less82. For unpublished works created before 1978, copyright lasts for 70 years after the author's death83.

All works published before 1923 are in the public domain.

Previous Copyright Acts allowed authors to periodically renew their copyright, so that a maximum copyright term of 95 years was possible84. However, in 1964 thousands of works lost their copyright status because they were not renewed85. As a result, the only real to tell if older works are in the public domain is to check with the US Copyright office86.

Another important point to note is that if copyright still exists, the author's exclusive rights can be passed on through inheritance to their family87.

This is all very different from the position regarding plagiarism, where it does not matter if the work is public domain or not.

All works are now protected the moment they are created (i.e. fixed), so a work does not need to be published. However copyright notices can still be relevant today. §.405(b) 17 USC states that a copyright notice will prevent someone from claiming the partial defence of "innocent infringement', i.e. that they were unaware the work was copyrighted.

Foreign works are also protected under the Berne Treaty 1989, which covers virtually all the industrialized nations91, and the Uruguay Round Agreement Act of 1994, which extended copyright protection to foreign works previously denied US copyright. Therefore you may not use a work simply because it was not created or published in the United States92.

How much can be copied?

Once copying is established, the court must find there is "substantial similarity' between the copied work and what was taken. This is not capable of precise definition93, however copying has been held to include non-literal copying and structural elements94.

Ideas v Expression

US law does not protect ideas, only their expression. 17 USC §.102(b) states that copyright does not extend to any "process, system, method of operation, concept, principle, or discovery'. The US Copyright Office Regulations state that copyright excludes "[i]deas, plans, methods, system or devices as distinguished from the particular manner in which they are expressed or described in a writing "95, including blank forms.

Critics have noted that, just as with UK law, the boundary between ideas and expressions has become impossible to define from the many court cases96. US courts do recognize that non-literal copying can violate copyright97. For instance, in CBS Broadcasting, Inc. v. ABC, Inc.98, a US District Court stated that a TV format could be copied if the later show copied a substantial amount of specific details. This is more generous to the copyright holder than in UK law.

However, in Baker v. Selden99, the US Supreme Court held that a system of book-keeping could not be copyrighted as it was only an idea, although the book describing the system could be as this was the expression of the idea.

Also, in Feist Publications, Inc. v. Rural Tel. Service Co.100, the claimants published a telephone directory containing the names and addresses of subscribers. It sought to stop Feist publishing its own directory using the same listings. The Supreme Court held that copyright required "originality' which was independent creation plus an amount of creativity. Therefore although the compilation itself could be copyrighted, the raw data contained in the directory could not as it did not contain any creativity.

As the Supreme Court is the ultimate case-law authority, it seems that ideas and facts will generally receive less protection than they do in UK law. So the plagiarist is less likely to infringe copyright by copying ideas or data in the USA, provided they do not copy the original work's layout, structure and words.

Another exception to copyright in the US is the "Merger Doctrine'. This states that works cannot be copyrighted if their expression is inseparable from their facts or ideas, or there are only very limited ways to say the same thing101. This includes mathematical equations and reports of judicial decisions102. Works of the US Federal Government are also expressly excluded from copyright103 Local city or state laws have also been held to be in the public domain104. All of these works will be treated as if they are facts and can be used without a licence. However care should be taken, as this only applies to works which have actually been adopted as law105, and possibly not to Bills or other codes.

Moral Rights

Moral Rights in the US are much more limited than in the UK, and are of little assistance to the copyright owner in preventing plagiarism.

Authors in the US have rights of paternity and integrity similar to those in UK law106. There is no need for the paternity right to be asserted beforehand. However both rights only apply to works of the visual arts. Therefore this might apply to a student who reproduces a still or photo or a work of art in their own work, but not to written work.

Conclusion

US copyright law is slightly weaker than UK law. The Merger Doctrine means that some works cannot be protected at all. Ideas and facts are also less likely to be protected in the US than in the UK. However, confusing changes to the duration of copyright means that for works published after 1922 it may be impossible to tell unaided whether the copyright term of a works has expired.

SECTION FOUR - AUSTRALIAN COPYRIGHT LAW

Introduction

Like the USA, Australia has two systems of law: federal and state/territory law. Under the Constitution of Commonwealth of Australia, only federal law applies to copyright107. Therefore there is one uniform law of copyright throughout Australia. The Copyright Act 1968 regulates copyright in Australia. However as a former British territory, English case law remains persuasive108.

Copyright subsistence

The Copyright Act 1968 splits copyright works into two kinds. Part III covers original literary, dramatic, musical and artistic "works' and their adaptations. Part IV defines other "subject-matter' as sound recordings, films, broadcasts, and published editions. The two categories are treated differently.

For the student or academic writer, literary works will be most relevant. Australian law follows the UK case of Exxon Corp v Exxon Insurance in requiring some degree of substantiality, so that titles or single words will not be copyright109. However under the Australian Act. compilations and tables are expressly included in literary works110. "Artistic works' include maps, charts, and plans111. So this is potentially wider than other legal systems.

There are no formal requirements for copyright protection. Copyright is created when material is "reduced to a material form'112. This raises an issue regarding the works of the indigenous peoples of Australia, as it means that unrecorded indigenous songs will not be copyrightable113. Mere transcription of these songs will also not be copyrightable, as Australian law follows the UK case of Walter v Lane114.

Part III works must also be made by a "qualified person'. This is defined as being an Australian citizen or company115. However as Australia is a party to the Berne Convention, this includes citizens of member states, which covers most of the industrialized world116.

Public Domain

Copyright lasts for 70 years after the year of the author's death117. However if the work is not published, copyright will still exist for 70 years from the date of first publication. Part IV works created before 1969 are not protected, although those created after 1969 will be copyrighted for 70 years from the date of first publication or broadcast118. This gives significantly less protection to older works than both UK and US law.

Infringement

Authors have limited exploitation rights to reproduce, publish, rent or broadcast the work to the public, or to adapt the work, or to authorize someone else to do any of these things119. Anyone doing any of these rights without the author's permission will infringe copyright. However the claimant must show that the defendant had access to the original work. If work was created independently by coincidence without copying it will not infringe copyright120.

In relation to copying, Part III works may be infringed if they are "reproduced'. This includes non-literal copying121. However Part IV subject-matter may only be infringed if they are "copied'. So you can only infringe copyright by copying Part IV subject-matter if you reproduce the work directly, such as by paraphrasing or verbatim copying. For instance, in CBS Records Australia v Telmark Teleproducts122, it was held that "sound-alike' records did not infringe sound recordings. For academic writings, the only probable application of this is when writers copy the content of films. Although a screenplay is a literary work, and is therefore protected more generously, this may have ramifications for documentary filmmakers if unscripted portions of the film are written down verbatim. Such use may well not infringe copyright. This is, of course, different to plagiarism, which includes non-literal copying from any source.

There must also be "substantial similarity' between the infringing copy and what was copied from the original work123. Like UK law, this is a qualitative rather than a quantitative test. If the "essence' of the original work has been taken this will amount to 'substantial' copying124.

Originality

Australian law requires that Part II works be "original'125. Therefore it is a defence to infringement proceedings to show that the earlier work was not copyrightable as it lacked originality.

Previously, to be "original' simply meant that the work was created by the author, and can include compilations of works that already exist provided the act of compilation itself involved some "sweat of the brow' or "industrious application'126. This contrasted with the USA case of Feist Publications, Inc.

However the High Court of Australia reached a different decision on the issue of copyright infringement. In IceTV Pty Ltd v Nine Network Australia Pty Ltd127, IceTV created a similar TV guide to the weekly TV schedule produced by Nine Network. The court found this was not infringement as what was taken as not "original', and therefore could not form a "substantial part' of the earlier work. This seems to be a form of the idea/expression dichotomy in English and US law. Mere data belongs to the realm of "ideas' whereas the way it is presented is the "expression'.

The court stated that "originality' required an element of "intellectual skill' and "judgment' by the author. In reaching this decision, part of the court's reasoning was whether a human author could be identified. In Telstra v Phone Directories128, the Federal Court held that no copyright subsisted in listings in a telephone directory as it was impossible to identify any human authors of the work, the listings being at least in part automatically generated by a computer program. The court held that an original work must involve "independent intellectual effort'. Just putting a process in motion was not enough129. While you do not need to identify every human author, at least one should be responsible for some of the work without computer-generated assistance or the work will be public domain130.

Therefore automatically generated data, such as satellite photographs and computer-generated reports cannot be copyrighted in Australia, and such portions of work may be reproduced without infringing copyright131.

Moral rights

Like the UK, Australian law recognizes the moral rights of paternity, integrity, and the right against false attribution. These rights apply to reproducing or exhibiting work, communicating work to public, and falsely attributing work to the author. This covers all possible forms of plagiarism and may be an alternative remedy to infringement for plagiarized authors.

However these rights are more limited than in English law. The rights only apply to Part III works and to the directors, producers, and screenwriters of films. The rights may also be waived. Also, a moral right is not infringed if it was reasonable in the circumstances not to identify the author or subject the work to derogatory treatment132. "Reasonable' use can include established industry practice. Therefore although moral rights in Australia are stronger than in the United States, they are still significantly weaker than in UK. This is seen in the comparatively few number of cases involving these rights to date133.

Conclusion

In summary, Australian copyright law seems much softer than English law in many respects, notably in the way it treats Part IV works very differently from "original' Part III works. In terms of copyright protection, moral rights, and what may be copied, Part IV works have substantially less protection. There is also an issue regarding indigenous Australian works, which are not adequately protected by the current law.

SECTION FIVE – Illegal v unlawful: defences and fair dealing

i) "ILLEGAL' v "UNLAWFUL'

Plagiarism may be unlawful, but it is not necessarily illegal. Although these two terms are often used interchangeably, they do have different technical meanings. "Illegal" has been defined as an act' which the law directly forbids, as to commit a murder, [or] obstruct the highway'134. By contrast, "unlawful' acts are "ineffectual in law because... although not illegal, i.e. positively forbidden, [they] are disapproved of by the law'135.

Therefore to infringe copyright is to violate law and commit an "illegal' act. However while plagiarism is considered unethical, it is not "illegal' unless it also infringes copyright or some other rule of law.

In fact, some plagiarisms may not even be unlawful, as even plagiarized work is capable of subsisting in copyright. A plagiarized essay still qualifies as a literary work under the CDPA 1988 even if it has not been created to academic standards. The plagiarist would still be able to enforce that copyright in law. Dan Brown's The Da Vinci Code may well contain ideas copied from the Holy Blood and the Holy Grail that in a strict academic setting would require more of an acknowledgment than he provided, but this would not stop the copyright owners from enforcing their rights should anyone copy Brown's novel.

ii) FAIR DEALING

Copyright infringement will also not violate the law if the infringer has a legal defence. The most common defence is "fair use' or "fair dealing'.

United Kingdom

In the UK, "fair dealing' means the defendant used infringing material for a permitted purpose, the use was fair, and there was a sufficient acknowledgment given as to the source136. The permitted purposes are: non-commercial research; private study137; reporting on current events; and criticism or review138.

Sufficient acknowledgment of the original work is not required for private study. Nor is it required for research and reporting on current events if it would be impractical to provide one. This is important for students. For purely academic work, the UK law does not require that source material be acknowledged. However this will not protect students from allegations of plagiarism.

Someone writing an essay or journal article may claim they are writing for the purposes of criticism, review or reporting on current events. "Criticism' is a wide category and may include ideas contained in a work or even its moral or social implications139. However in Hubbard v Vosper, it was said that if the copier was in competition with the copyright holder, the defence would be harder to justify. Therefore if the professional writer gained an economic advantage in the same market for such publications, this would not be "fair dealing' The "purpose' of a work is an objective term based on what a reasonable person would think the work had been used for140.

Reporting on Current Events does not apply to the use of photographs141. Otherwise, it is a category "of wide and indefinite scope'142. However the copied material should be recent and of current interest143. Therefore if in the above example the academic was writing about a topic of current interest, they could claim this defence.

Use must also be "Fair'. This is not defined and is a vague term in UK law. It is said to be "a matter of impression'144, or anything which a "fair minded and honest individual' would call fair145. This provides little assistance, and makes cases very difficult to predict. Ultimately each case may depend on its own facts146.

There is no percentage of work that may safely be borrowed. In determining "fairness', courts have drawn on a bewildering array of factors, such as: the motive of the user; excessive use by the defendant; and whether the use prejudiced the copyright holder's interests147. However if material was obtained in breach of confidence, this will not probably be "fair'148. Also, copying will only be a infringement in the first place if the amount copes is "substantial'. So if the amount used is less than "substantial', this defence will not be needed.

Australia

In Australia, the defence of "fair use' is available if the infringement is one of the permitted acts and the use is "fair'. Permitted purposes are dealing with an original work or film for research or private study149, criticism or review150, parody or satire151, reporting news152, or the giving of professional advice by a legal practitioner or patent attorney153.

"Research or private study' means "diligent and systematic inquiry or investigation into a subject in order to discover facts or principles'154. It must involve some evaluation of the material155. Therefore the infringer should take care to provide some kind of analysis or opinion about the material he or she copies.

Including material purely for "entertainment value' is neither reporting news nor criticism or review156. Courts will also have regard to the "true purpose' of any reproduction, rather than what the copier believes they were doing157.

The 1968 Act sets out factors that may determine whether a use is "fair'158. However this list is not exhaustive. Therefore whether a particular use is fair will depend greatly on the circumstances of the case159. The relevant factors are: the purpose of the dealing; the nature of the work; the possibility of reasonably buying the original work; the effect of the dealing upon the potential market or value of the work; and the amount copied.

There are several important exceptions. Under s.40(3) it is permissible to reproduce one entire article in a journal for research or study. Anything more will be infringement160. Otherwise, the copier may use a "reasonable portion' of the original work161.

There is no general rule about what a "reasonable portion' is162. However the Act explicitly states that copying up to 10% of the work is acceptable163. Also, copying an entire chapter is acceptable even if it amounts to more than 10% of the pages or words of the original164. For works shorter than 10 pages, less than 10% may be allowed165. This convention provides more certainty, and allows you to copy a considerable amount more, than UK or US law.

Finally, as with UK law, if you copy work for criticism, review or news reporting, you must also include sufficient acknowledgement of both the title of work and the author's name166.

US law includes "scholarly work' as a permitted purpose. This includes work for profit. For example, a book on abortion that borrowed heavily from a book which had taken the opposite stance was considered to be fair use, as using opposing arguments was the only effective way to educate the public167.

Use must also be fair. §.107 lists several factors courts should consider: the purpose the work was used for, the nature of the copied work, the amount taken, and any effect on the value of the copyright.

American courts tend to focus on whether the use was "transformative'. This means that some new use must be made of the work to benefit the public, for instance providing criticism, fresh insight, or a new understanding of the subject168. So if you simply reproduce work without adding any comment, this is probably not "fair use'.

Unlike Australian law, there is no maximum percentage of the original work that you may safely use. Courts have reached very different decisions based upon the unique facts of each case, so this is hard to predict.

For instance, an unauthorized "Harry Potter' encyclopaedia was not "fair use'. Although it was slightly transformative (it was a reference tool for a work of fiction), the excessive verbatim copying from the original novels counted against it169.

A small amount of borrowing can also violate copyright law. In Harper & Row v National Enterprises170, a political magazine quoted 440 words from a 200,000 word book written by former President Ford. This was held not to be "fair use', as the extract concerned Ford's pardoning of Richard Nixon, considered to be the "heart of the book'.

Infringement will not be "fair use' if it competes with the original work. For instance, in Twin Peaks v Publications International Ltd171, a company published a guide to the TV show "Twin Peaks'. As the book was competition for the copyright holder in a potential market, it was held not to be "fair use'.

Unlike UK and Australian law, §.107 does not expressly require a sufficient acknowledgment of the original work or author. However use without citation could count against it when deciding if the use was "fair'. Therefore anyone using another's work would be well advised to "cite and cite often'172.

Conclusion

Plagiarism is therefore be illegal only if it infringes copyright or some other law. Even infringement may be lawful if it amounts to "fair use' or "fair dealing'. The UK law provides little certainty on the subject of "fairness'. Australian law, by contrast, is far more prescriptive, allowing up to 10% of a work to be copied. US law is also vague, although it does provide several useful factors to consider. This makes cases hard to predict in the UK and the US.

SECTION SIX – CONSEQUENCES OF PLAGIARISM

i) CRIMINAL OFFENCES

If plagiarism involves a violation of copyright law, the infringer may commit criminal offences.

United Kingdom

s.107 CDPA 1988 creates several offences involving commercial dealing with infringing copies. These offences carry up to 10 years' imprisonment. To be guilty, the defendant must know or have reason to believe that they were dealing with an infringing copy. This protects those who honestly believe they were not infringing copyright.

The criminal acts are: making an infringing copy for sale or hire without a licence; importing; selling, hiring, or exposing copies for sale or hire; possessing copies in the course of a business; exhibiting copies in public; and distributing copies, whether for profit or for free if this damages the copyright value173.

Other offences include communicating a copyright work to the public in the course of a business, or if it affects prejudicially the copyright owner174. This includes situations where the work is placed on an Internet website or blog175.

Infringers may also commit an offence under s.1 Fraud Act 2006 if they dishonestly make a representation with a view to causing gain or loss to anyone176, for instance, if an academic secures a publishing advance for an original article but delivers a plagiarized version.

Australia

s.132 of the Copyright Act 1968 creates criminal offences for infringing copyright on a commercial scale, even if the person doing this makes no financial gain177. A person commits an offence if they make, sell or hire, import, distribute, advertise or possess infringing copies of a copyright work for "commercial advantage'.

The Act contains three levels of offence: indictable, summary, and strict liability, each with different fault levels of fault. Penalties range from imprisonment for up to 5 years to on the spot fines178.

If infringement involves converting a work from a hard copy to an electronic form, the offence is aggravated with higher penalties179. This would include putting an infringing copy that previously existed on paper onto the Internet.

United States

Title 17 USC § 506(1) creates a criminal offence of wilfully infringing copyright for commercial advantage or financial gain. It is also an offence to reproduce or distribute copies with a total value of $1000 within any 180-day period. Under s.506(c)-(d) it is an offence to fraudulent publish or remove a copyright notice. There are also offences for music, film and TV piracy. The penalties for US copyright infringement are maximum imprisonment of one year. For film, TV and music piracy the maximum is 2 years' imprisonment180.

Finally, those who infringe copyright on a global scale may fall foul of more than one copyright system. This is becoming more relevant due to the rise of the Internet where material can be accessed in any country. For instance, UK student Richard O'Dwyer found himself the subject of extradition proceedings to the USA, where he faces criminal allegations of setting up a website featuring links to pirate films and TV shows181.

Those who escape criminal lia

ii) CIVIL PENALTIES

bility may find themselves being sued in civil actions.

United Kingdom

Copyright in the UK can be enforced by granting damages, injunctions, accounts, "or otherwise'182. This includes orders for specific performance183.

Injunctions are a discretionary court order to stop ongoing infringements or stop future ones.

Damages may be awarded for losses suffered by the copyright holder. This is normally the price of a reasonable licence fee or royalties that the copyright owner could have charged for the work184. Alternatively, a court may order the infringer to "account for profits' and to pay the copyright owner any net profits they have made from the infringement.

A court may also grant an "order for delivery up'185, where the infringer is forced to deliver up or destroy any infringing copies in their possession.

Courts can also grant additional damages for flagrant infringements186, for example cynical or repeated infringements, or where the origins of a work have been deliberately disguised, such as by removing copyright notices or modifying it so it cannot be recognized187. This may apply to plagiarized written work.

Australia

Injunctions, damages and account of profits and orders for delivery up are also available for copyright infringement under Australian law188. Punitive damages may be awarded for blatant infringement189. Converting a hard copy into an electronic copy, for instance by typing up a print journal onto the Internet, may incur higher damages190. Damages aim to put the copyright owner in the position they would have been in had they owned the infringing copies191.

United States

Title 17 USC provides for injunctions192 and orders for impounding and disposition of infringing articles on terms similar to "delivery up' orders193.

§.504 (a) allows courts to impose damages and to force the infringer to account for profits. Any profits claimed may be in additional to any damages for losses the claimant actually suffered due to the copyright infringement. Therefore the claimant could recover much more than they have actually lost194. Courts may use punitive damages to deter future infringers195.

If a claimant's actual losses are difficult to quantify, statutory damages may be awarded as an alternative196. These may be up to $30,000 as the court thinks just. Statutory damages may be doubled for deliberate infringement, or reduced to as little as $200 for innocent infringement. Statutory damages and attorney's costs may not be awarded if the original copyright work was not registered prior to publication197.

iii) ACADEMIC AND COMMERCIAL PENALTIES

Even if a plagiarist escapes civil or criminal sanctions, they may still face serious consequences. Plagiarism can result in the cancellation of publishing contracts. When Kaavya Viswanathan's novel How Opal Mehta Got Kissed, Got Wild, and Got a Life was found to have plagiarized several works, including those by Megan McCafferty and Salman Rushdie , the publishers cancelled her publishing contract 198. The publisher may also ban the author in the future and withdraw copies already on sale199. In extreme cases, publishers may even sue the writer for breach of contract, as most publishing contracts require the author to provide a warranty that their work is original200

Plagiarism can cause severe embarrassment and damage the copier's career and good standing in the academic community. The publisher may complain to the academic's departmental head, resulting in internal disciplinary procedures being taken against the plagiarist201. Furthermore, any previous articles written by the plagiarist may also be subjected to scrutiny202.

Academic penalties can range from being marked down to suspension, expulsion, and even withholding a degree. In the UK, higher education institutions are empowered by the Education Reform Act 1988 to provide higher education and to do anything necessary or expedient for this purpose203. This includes entering into contracts, and setting up procedures for the appointment, suspension and dismissal of staff, and for the admission, suspension and expulsion of students204. In the UK, the Office of the Independent Adjudicator (an independent body set up to deal with complaints against universities) supported a university which gave a student no marks for an essay that contained inadequate referencing205.

However, universities may not have absolute power to do whatever they like. In the UK, universities are "public bodies' and therefore governed by the Human Rights Act 1998, which enshrines the European Convention on Human Rights into UK law206. University Disciplinary Committees decide what penalties to impose on students for plagiarism. These are distinct from Examination Boards, which grade students based on their academic performance. Disciplinary Committees are subject to Article 6 of the European Convention on Human Rights, which states that a court or tribunal must act fairly according to the principles of natural justice, proportionality and consistency.

For instance, in R v Manchester Metropolitan University ex parte Nolan207, a refusal to allow a student to challenge the university's decision was held to be unlawful. The court held that if an Examination Board played any role in the disciplinary process, then it would have to adopt the same procedures and take into account all the available evidence. Otherwise, the university's decision has no force in law. In view of this, the JISC recommends keeping the functions of Examination Boards and Disciplinary Committees separate208.

Students must also be allowed to see all the evidence against them, be given notice of any proceedings, and be allowed representation by a lawyer if requested209. Under Article 6, any penalties imposed must also be proportionate to the offence, and should be accompanied by written reasons for the decision210.

In one recent case, a student accused his university of negligence for failing to bring plagiarism to his notice. Michael Gunn sued the University of Kent for failing him for plagiarism days before he was due to graduate, having said nothing about this while he carried on his studies211. Universities have also been ordered to pay compensation for changing a student's grade after they have graduated on grounds of plagiarism212.

Plagiarism policies may discriminate against students from overseas. The JISC recognizes that for some students, such as those who are home-schooled, reproducing large amounts of text is a way of showing they understand and are aware of this information213. Other foreign students may copy or paraphrase due to lack of confidence in writing English if it is not their native language214. The JISC advises that UK institutions must still apply UK standards215. UK law supports this stance, as non-native English speakers are not classed as having a "learning disability'216. However this does not seem overly fair, especially when universities receive good money to accept students from foreign countries. As a result these policies may be open to challenge under the Human Rights Act 1998.

Many academic institutions also utilize plagiarism detection sites and software such as Turnitin.com, WriteCheck.com, and plagiarismchecker.net. In the USA, their use has already sparked a court case. InAV v iParadigms LLC217, high school students in Virginia and Arizona sued Turnitin.com's owners, iParadigms. The students went to schools that required the use of Turnitin.com when handing in assignments. The schools also authorized Turnitin.com to keep digital copies of student papers on their site so they could be compared with future submissions. The students claimed storing the digital copies amounted to copyright infringement. The trial judge said that students had agreed to use the service by agreeing to the site's Terms and Conditions. He rejected the argument that there was no contract because the students were only minors and that they only agreed to use it under duress from the school. The 4th Circuit Appeal Court ruled that Turnitin.com's use was "fair use', as it was transformative in nature218. However this judgment ignores the fact that the students were only minors. The US Supreme Court has yet to rule on such a case, so this may signal the start of new challenges to the use of detection software.

Conclusion

Even if the plagiarist escapes criminal and civil sanctions, they may still suffer the loss of lucrative contracts, employment, academic marks, reputation and face possible expulsion. However academic decisions may be open to challenge, and may involve counterclaims of defamation, discrimination, abuse of personal information and procedural unfairness.

CONCLUSION

We have seen that is difficult, if not impossible, to precisely define "plagiarism'. Also, plagiarism is in some ways part of the learning process, and even a cultural norm in the digital age. Copyright infringement and plagiarism are not the same thing, and one may be a plagiarist without infringing copyright, and vice versa. While there are broad similarities between UK, US and Australian law, ideas are generally less well protected in the US and Australia. Also, moral rights are much weaker in these two countries. Plagiarism is not always illegal, thanks to defences such as "fair use'. However what is "fair' can be very hard to pin down, and the potential infringer would be well advised to always err on the side of caution. There are severe criminal and civil penalties for commercial copyright infringement, and plagiarism can also have damaging academic and professional consequences. However, in a culture that is becoming increasingly reliant upon digital sources of freely available information, the next generation of scholars may well have very different ideas about what is "plagiarism'. One answer would be to change the way university courses are taught, placing less reliance on traditional essay-writing, which encourages students to reproduce taught information in a slightly different form. Instead universities appear to be resorting to technology themselves to stamp out plagiarism. Whether these methods are legal themselves remains to be seen.

The Council of Writing Program Administrators, Defining and Avoiding Plagiarism: The WPA Statement on Best Practices, 2003, retrieved 7 November 2012, <http://wpacouncil.org/positions/WPAplagiarism.pdf>

Zhou, D, "Examples Of Similar Passages Between Viswanathan's Book And Mccafferty's Two Novels', The Harvard Crimson, 23 April 2006, retrieved 15 November 2012, <http://www.thecrimson.com/article/2006/4/23/examples-of-similar-passages-between-viswanathans/>

10 D Zhou, "Examples Of Similar Passages Between Viswanathan's Book And Mccafferty's Two Novels', The Harvard Crimson, 23 April 2006, retrieved 15 November 2012, <http://www.thecrimson.com/article/2006/4/23/examples-of-similar-passages-between-viswanathans/>.

21 The Council of Writing Program Administrators, Defining and Avoiding Plagiarism: The WPA Statement on Best Practices, 2003, retrieved 7 November 2012, <http://wpacouncil.org/positions/WPAplagiarism.pdf> p.1.